How to make the ‘Citizens United’ decision worse

By Kent Greenfield,

Kent Greenfield teaches constitutional and corporate law at Boston College Law School. He is most recently the author of “The Myth of Choice: Personal Responsibility in a World of Limits.”

Two years ago this weekend the Roberts Supreme Court issued its most controversial ruling to date. Citizens United v. Federal Election Commission overturned long-standing campaign finance laws restricting corporate political expenditures, reasoning that the political speech of corporations was as important to the marketplace of ideas as the voices of human citizens. As is well known, denunciations of the opinion, which allowed groups to raise and spend unlimited amounts supporting or opposing candidates, were loud and widespread. President Obama even took the rare step of criticizing the court while delivering his 2010 State of the Union address — while some of the justices sat before him. As the rise of super PACs has already shown in the Republican primaries, the coming presidential election will be swamped with cash, and our democracy will not be better for it.

Unfortunately, the most prevalent critique of the decision — Corporations are not people! — is simplistic and dangerous. Many anti-corporate activists are coalescing their efforts around a proposed constitutional amendment saying that constitutional protections are intended only for “natural persons.” The amendment has been introduced in both chambers of Congress, and nearly 50 municipalities, including New York and Los Angeles, have endorsed it. Opponents of corporate power have announced plans to stage protests, or “Occupy the Courts,” including the Supreme Court, on Friday.

These efforts squander the energy of thousands of Americans on a potential remedy founded on a fundamental misunderstanding of constitutional law. Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations.

In fact, saying corporations are not persons is as irrelevant to constitutional analysis as saying that Tom Brady does not putt well in handicapping the NFL playoffs. The Constitution protects the rights of various groups and institutions — whether Planned Parenthood, Bob Jones University or the AFL-CIO — though they are not “natural persons.” Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.

The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

Another reason to protect corporate rights is to guard against the arbitrary and deleterious exercise of government power. If, for example, the Fifth Amendment’s ban on government “takings” did not extend to corporations, the nationalization of entire industries would be constitutionally possible. The Fourth Amendment prohibits the FBI from barging into the offices of Google without a warrant and seizing the Internet history of its users. A freedom of the press that protected only “natural persons” would allow the Pentagon to, say, order the New York Times and CNN to cease reporting civilian deaths in Afghanistan.

There are ways to address inordinate corporate power in politics that avoid razing the house to rid it of termites. Many ramifications of Citizens United can be addressed with more aggressive disclosure rules, limits on political involvement of companies receiving government contracts, or mandates that shareholders approve political expenditures.

But as the denunciations of Citizens United peak this weekend, it’s useful to keep in mind that the biggest problem with corporate power was not created by the Supreme Court. The key flaw of American corporations is that they have become a vehicle for the voices and interests of an exceedingly small managerial and financial elite — the notorious 1 percent. That corporations speak is less a concern than whom they speak for and what they say. The cure for this is more democracy within businesses — more participation in corporate governance by workers, communities, shareholders and consumers. If corporations were themselves more democratic, their participation in the nation’s political debate would be of little concern and might even be beneficial.

More on this issue from PostOpinions:
Coates and Lincoln: Fulfilling the promise of ‘Citizens United’
Bossie and Olson: How ‘Citizens United’ freed political speech
vanden Heuvel: Stanching the flow of corporate dollars into politics
Meyerson: The growing tension between capitalism and democracy